Discretion cannot be against a lawful solution

1.            Discretion cannot be against a lawful solution.

The Supreme Court in Anurag Kumar Singh & Ors. Vs. State of Uttarakhand, has observed that courts, in exercise of judicial discretion, cannot give any direction contrary to the statute or rules made there under and it is to be exercised only when there are two or more possible lawful solutions.

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Judicial discretion can be exercised by a Court only when there are two or more possible lawful solutions. In any event, Courts cannot give any direction contrary to the Statute or Rules made thereunder in exercise of judicial discretion. It will be useful to reproduce from Judicial Discretion (1989) by Aharon Barak which is as follows:

“Discretion assumes the freedom to choose among several lawful alternatives. Therefore, discretion does not exist when there is but one lawful option. In this situation, the judge is required to select that option and has no freedom of choice. No discretion is involved in the choice between a lawful act and an unlawful act. The judge must choose the lawful act, and he is precluded from choosing the unlawful act. Discretion, on the other hand, assumes the lack of an obligation to choose one particular possibility among several.”